The First Amendment Protects the Right to Boycott Israel

Earlier this week, the ACLU sent a letter to members of Congress opposing the Israel Anti-Boycott Act. The bill would amend existing law to prohibit people in the United States from supporting boycotts targeting Israel — making it a felony to choose not to engage in commerce with companies doing business in Israel and its settlements in the occupied Palestinian territories. Violations would be punishable by a civil penalty that could reach $250,000 and a maximum criminal penalty of $1 million and 20 years in prison.

The bill is aimed at advocates of boycotts targeting Israel, most notably the Boycott, Divestment, Sanctions (BDS) movement — a global campaign that seeks to apply economic and political pressure on Israel to comply with international law. Specifically, the bill sponsors intend the act as a response to the U.N. Human Rights Council’s 2016 resolution calling on companies to respect human rights, including in occupied Palestinian territories.

No matter what you think about the Israeli-Palestinian conflict, one thing is clear: The First Amendment protects the right to engage in political boycotts.

In fact, the right to boycott is one of the brightest stars in our constitutional firmament. The American Revolution was founded on boycotts against British goods to protest excessive taxes. John Jay led a boycott against New York merchants who engaged in the slave trade. And the Montgomery bus boycott of 1955–1956 was a major turning point in the struggle for civil rights in the Jim Crow South. In the 1970s and 1980s, colleges and universities led a widespread campaign to boycott and divest from South Africa, in protest of apartheid. In 2015, football players at the University of Missouri went on strike until the school addressed acute racial tensions on campus. And North Carolina’s law prohibiting transgender people from accessing restrooms and other facilities consistent with their gender identities sparked massive boycotts by businesses and individuals.

Boycotts are a form of collective action that allows ordinary people to make their voices heard. For precisely this reason, the Supreme Court has held that the First Amendment protects the right to boycott. The court’s landmark decision in NAACP v Claiborne Hardware Co.affirmed the constitutional right of NAACP activists to hold a mass economic boycott of white-owned businesses in Port Gibson, Mississippi, to protest the community’s persistent racial inequality and segregation. In ringing language, the court held that the boycotters’ exercise of their rights to “speech, assembly, and petition . . . to change a social order that had consistently treated them as second-class citizens” rested “on the highest rung of the hierarchy of First Amendment values.”

This is a proud constitutional legacy. Today, though, the right to boycott is under assault. Over the past several years, federal, state, and local legislators have introduced wave after wave of legislation seeking to stamp out boycotts and divestment campaigns aimed at Israel. One such law, passed earlier this year by Nassau County in New York, prohibits the county from doing business with people who support the BDS movement. As a result, Roger Waters of Pink Floyd fame could be banned from playing at the Nassau Coliseum in New York. Similar laws have been passed in Arizona and Kansas.

None of them comport with the First Amendment.

The Israel Anti-Boycott Act introduced in Congress goes a step further, threatening severe civil and criminal punishment against individuals who refrain from doing business with Israel because of their political opposition to its government’s actions. The bill amends two existing laws, the Export Administration Act of 1979 and the Export-Import Bank Act of 1945, which prohibit certain boycotts sponsored by foreign governments.

The bill would expand the application of those laws in a number of ways. It would expand the laws to prohibit boycotts called for by international organizations, like the United Nations and the European Union; it would threaten sanctions against people who boycott businesses operating in Israeli settlements in the occupied Palestinian territories; and it would prohibit even requests for information about companies’ business relationships with Israel and Israeli companies. This expansive language would likely chill a wide range of political activity in the United States directed at the Israeli government — activity that is constitutionally protected, regardless whether members of Congress agree with it.

A number of the bill’s sponsors were apparently surprised by the ACLU’s free speech concerns with the bill. Several of them have now expressed their intention to review the legislation with the ACLU’s civil rights and civil liberties concerns in mind. We hope they do the right thing by backing away from any bill that violates our First Amendment rights.

This post was updated to reflect the fact that $250,000 is not the minimum civil penalty for violating the law. Rather, the maximum civil penalty is either $250,000 or twice the amount of the money at issue in the alleged violation, whichever is greater.

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Anonymous

Wait a minute... I thought these guys were all for America being first, not Israel first. People don't have to buy Israeli products and stuff if they don't want to. Many of us don't buy foreign products because we want to support businesses here at home. Sorry. The American Jew comes before the Israeli Jew in my mind. I don't know about all of you, but I'm a citizen of the USA not some Middle Eastern country. My country comes before everyone else.

Eli Samuel Goldman

To the moron who posted about the founder of the ACLU calling themself a "socislist." as if it's a negative: City and County Fire Departments are a socialist idea, so are city and county police departments and emergency services like ambulances.public parks for the people of a venue funded by the people are a socialist creation. Trade Unions like the Teamsters, AFL-CIO, United Farm Workers Union and IOTSI, are socialist inventions you moron! So I guess if you're sick, a crime is committed or your house is on fire you don't want help. And I guess you're against child labor laws, quality standards,prevailing wage, workers rights,worker health care and retirement funds of social security as well to help you if you're sick or get old. I guess you hate paid vacations , sick leave and materinity leave because those are socialist inventions too. And I assume you don't care about safe working conditions of having rights as an employee because THAT is a socialist invention too. So is public school for your children so you don't have to save up your whole life to send one child to school for as long as you can afford. State Colleges and Universities are a socialist invention too, and the sports teams and subsidized education and everything else that comes with them. So are County and state hospitals, public emergency rooms and free clinics. So I hope if you're sick Mr Anti-Socialist things you have enough money cash in hand to pay upfront for any treatment of emergency you may have.and please don't take your kid to a public park to play, it's way too socialist for you. MORON!

Helen

Anonymous

Boycotting Jews for defending themselves against 97 years of Islamic terrorism isn't outrageous?

July 21, 2017 4:05 PM

actually dipstick. Palestinians are not just Muslims they are jews and Christians. who fight against the terror that isrl has been doing to them..seems u are looking with blinders on. next ur going to tell me that that land was not occupied. and it was a wasteland, but before isrl even came to be they used to export oranges and olives. they had a thriving country that worked for them. the only thing isrl has brought to that land was death and theft. may isrl fall into the sea for it does not deserve to be a nation. FREE PALESTINE!

Eli Samuel Goldman

Public works fixtures and projects like non-toll paved public roads...another damn socialist idea. And those fucking Street signs, stop lights, and fire hydrants, damn socialist things. All this damn socialism in our lives every day.welli can see why stupid people would rather have NONE of these things.

Eli Samuel Goldman

I say we get rid of all socialism in the USA. No public schools, state universities or collects. Remove the right to vote from women and minorities and equal rights all together. Get rid of all disability public help. Get rid of all publically funded police, sheriffs, hospitals, ambulances, roads, sidewalks. Get rid of all signs that are publicly funded and lights including stop and Street lights. Let em all guess where to go. Get rid of public parks, and all unions and maternity leave, vacation pay, holiday leave including Christmas. That's a damn socialist idea man. Get rid of sick leave and pay. It's socialist man. These are just some of those damn socialist inventions we need to get rid of along with workers rights and safety standards, and child labor laws. Trump knows even a four year old canbe trained and beaten and forced to work in a factory and live in a shed with eight other children for food and nothing else. So out with those damn children's rights and child labor laws.

Eli Samuel Goldman

And the old in this country should be forced to work for whatever meager pay we give me and have no retirement pay from their employment years or social security, because that's damn socialism man. And Trump knows those who are old, disabled and can't earn enough, are not rich or spent their life saving for retirement should be beggars homeless in the streets, because damnit, those retirement and care programs are lousy socialist inventions as is a minimum wage. The poor in this country can be taught to work for ten cents an hour and just pack 15 ina room for shelter.

Anonymous

I support your argument, but I want to be able to quote "chapter and verse." Where exactly in the text of S.720 is the reference to penalties? For example, I searched the PDF file of S.270 for "250,000" and could find no reference.